*1272 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF
I. INTRODUCTION.
The Immigration and Nationality Act (“INA” or the “Act”) permits United States citizens to petition for “immediate relative” status for their foreign-born children, including adopted children “adopted while under the age of sixteen years.” Plaintiff Sook Young Hong adopted her son, Taeyoung, born in South Korea, by a court order from the State of Hawaii, entered January 27, 2004. This date fell three weeks after Taeyoung’s sixteenth birthday, but, pursuant to Hawaii Revised Statutes § 578-8, the state court exercised its discretion to fix the date of the adoption as of the date Hong had filed her petition, three months before Taeyoung’s sixteenth birthday.
After the District Director of the United States Customs and Immigration Services (“USCIS”) denied Hong’s subsequent petition to accоrd immediate relative status to Taeyoung, Hong sought review from the Board of Immigration Appeals (“BIA”). The BIA, relying on two prior BIA opinions presenting similar facts, held that Hong’s petition could not be granted because Taeyoung’s nunc pro tunc adoption date was “not valid for immigration purposes.” Hong then filed suit in this court, asking this court to order the BIA to grant her petition.
Because the BIA failed to consider congressional purposes to keep bona fide families united and accord liberal treatment to children, and because the record contains no evidence that this adoption was fraudulent or spurious or that the state court decision should be disregarded as a sham, this court concludes that the BIA decision is arbitrary, сapricious, and not in accordance with law. Accordingly, the court denies the Government’s motion for summary judgment, and grants Hong’s motion for summary judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND.
The parties agree on the relevant facts. Taeyoung was born on January 7, 1988, in South Korea. Pl.’s Concise Stmt. Facts (“Pl.’s Facts”) No. 2, ECF No. 85; Defs.’ Stmt. Facts Opp. (“Defs.’ Facts”) No. 2, ECF No. 30. Taeyoung immigrated to the United States on August 5, 2003, on visitor status, and began living with Hong’s family on that date. Defs.’ Fact Nos. 2-3. PL’s Fact No. 3. Hong petitioned to adopt Taeyoung on October 6, 2003. Defs.’ Fact No. 4; PL’s Fact No. 4. Taeyoung turned sixteen years old on January 7, 2004. See Defs.’ Fact No. 1; PL’s Fact No. 2. The Hawaii state court issued the adoption decree on January 27, 2004. Defs.’ Fact No. 6; PL’s Fact No. 6. According to the adoption deсree, the adoption was effective as of October 6, 2003, the date the petition had been filed. Taeyoung was still 15 years old as of October 6, 2003. Defs.’ Fact No. 6; PL’s Fact No. 7.
Hong is a United States citizen. PL’s Fact No. 1. On December 6, 2005, Hong applied for an 1-130 visa with USCIS, seeking Taeyoung’s classification as an immediate relative of a United States citizen. Defs.’ Fact No. 8; PL’s Fact No. 9. The USCIS denied Hong’s petition on June 1, 2006. Defs.’ Fact No. 9; PL’s Fact No. 10. Hong moved for reconsideration on June 7, 2006, and on June 13, 2006, the USCIS reopened and again denied the petition, stating, “Although the petition for adoption was filed prior to the beneficiary reaching the age of 16, the adoption was granted after the beneficiary reached 16.” Defs.’ Fact No. 11; PL’s Fact Nos. 11-12.
Hong timely appealed to the BIA. See Defs.’ Fact No. 12; PL’s Fact No. 13. The BIA dismissed the appeal on June 10, *1273 2010. Defs.’ Fact No. 15; Pl.’s Fact No. 15. The BIA reasoned that “the beneficiary was over the age of sixteen at the time of adoption, since the beneficiary was born on January 7, 1988, and the final adoption decree is dated January 13, 2004.” Pl.’s Fact No. 15. This suit followed.
III. STANDARD OF REVIEW.
A. Motions to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal when a claimant fails “to state a claim upon which relief can be granted.” Under Rule 12(b)(6), a court’s review is generally restricted to considering the contents of the complaint.
Sprewell v. Golden State Warriors,
B. Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
The burden initially falls on the moving party to identify for the court “the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
When the moving party meets its initial burden on a summary judgment motion, the “burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial.”
Id.
The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.
See Balint v. Carson City,
Summary judgment may also be appropriate when a mixed question of fact and law involves undisputed underlying facts. See
EEOC v. UPS,
IV. ANALYSIS.
A. The Motions Are Construed as Motions for Summary Judgment.
The Government moves to dismiss the Amended Complaint or, in the alternative, for summary judgment.
See
ECF No. 29. Hong countermoves for summary judgment.
See
ECF No. 34. When matters outside the pleadings are considered, the court normally treats a motion as seeking summary judgment.
Kearns,
B. Relevant Statutory Background.
The INA imposes a numerical quota on the number of immigrant visas that may be issued and/or the number of aliens who may otherwise be admitted into the United States for permanent residence status. See 8 U.S.C. § 1151(a); see generally 8 U.S.C. §§ 1151-1381 (Subchapter II — Immigration). However, aliens who are “immediate relative[s]” of United States citizens are exempt from these numerical limitations and may obtain immigrant visas by petitioning for immediate relative status. See id. § 1151(b)(2)(A)(i) (defining “immediate relatives”); id. § 1154(a)(1)(A)© (setting forth petitioning procedure). “Immediate relatives” include “children.” INA § 101(b)(1)(E), 8 U.S.C. § 1151(b)(2)(A)®. The statutory definition of “child,” for purposes of subchapter II of the INA, includes “a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.” 8 U.S.C. § 1101(b)(1)(E)®.
The BIA interpreted the statute as requiring that the adoption order have been finalized before Taeyoung’s sixteenth birthday, regardless of the order’s effective date. See Mem. Supp. Defs.’ Mot. Dismiss Amd. Compl. or Mot. Summ. J. (“Defs.’ Mot.”) 14-20, ECF No. 29. Hong interprets the statute differently. She contends that the statute does not contain an age requirement connected with the date an adoption decree issues, and that the BIA’s decision was contrary to the statute’s plain meaning. See Mem. Supp. Pl.’s Counter-Mot. Summ. J. 21-26, ECF No. 34.
C. Agency Deference.
This court does not write on a blank slate.
Chevron
deference applies to this court’s review of prеcedential decisions by an administrative agency called on to interpret the statute it is charged with interpreting.
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
Hong’s petition was heard by the District Director of the Honolulu District Office of the USCIS. CAR at 17. The Director relied on two precedential BIA decisions, Matter of Cariaga, 15 I. & N. Dec. 716 (BIA 1976), and Matter of Drigo, 18 I. & N. Dec. 223 (BIA 1982), for the proposition that the INA requires that the adoption be granted before the beneficiary reaches sixteen years old. In Cariaga and Drigo, the BIA rejected petitions for immediate' relative status on behalf of two adopted children who were over the statu *1275 tory age at the time of the adoption, but whose adoption decrees were made retroactively effective by a state or territorial court. Cariaga, 15 I. & N. Dec. at 717; Drigo, 18 I. & N. Dec. at 224-25. Here, the District Director concluded that, under Cariaga and Drigo, “[djespite the retroactive effective nature given by the court, [Taeyoung’s] adоption is not valid for immigration purposes.” CAR at 17. The BIA’s single-judge, unpublished affirmance stated the essential facts, took note of the “two precedential] decisions rejecting nunc pro tunc adoptions in situations similar to the instant case,” and affirmed the Director’s decision to deny Hong’s application “for the reasons stated in the decision.” CAR at 22-23.
Because the BIA opinion was issued by a single judge and was unpublished, standing alone it is entitled to deference only to the extent of its “power to persuade.”
See Estrada-E spinoza,
Finally, when the BIA, instead of simply adopting the administrative decision appealed from, conducts its own review of the evidence and the law, the court’s “review is limited to the BIA’s decision, except to the extent that the [underlying administrative] opinion is expressly adopted.”
Nai Yuan Jiang v. Holder,
D. Chevron Step One.
The court’s first duty is to “give effect to the unambiguоusly expressed intent of Congress,” when possible.
Chevron,
An adopted person is a child under section 101(b)(l)(E)(i) of the INA if the person is unmarried and under twenty-one years of age, and was “adopted, while under the age of sixteen years if the child has been in the legal custody of, and has resided with the adopting parent or parents for at least two years.” 8 U.S.C. § 1101(b)(l)(E)(i) (emphasis added). Each party argues that the definition above unambiguously supports its view of whether Taeyoung quаlified as a “child” under the INA. According to Hong, the “common and ordinary meaning” of “adopt” refers to the date Hong and Taeyoung assumed the legal relationship of parent/child, or the date she took Taeyoung into her family by legal means in order to raise him as her own child. See PL’s Mot. at 25-26 & 25 n. 2 (citing Black’s Law Dictionary, American Heritage Dictionary, and Webster’s New World Dictionary). The adoption’s effective date, she argues, signifies the begin *1276 ning of the required legal relationship. Id. at 26.
The Government argues that the phrase “adopted while under the age of sixteen” refers to the end of an adjudicatory process by which the new parent/ehild legal relationship is established. See Defs.’ Mot. at 15-16 n. 4 (citing Ballentine’s Law Dictionary and Black’s Law Dictionary for definitions of “adoption”); see also Defs.’ Reply at 6 (arguing that Hong’s definitions actually support the Government’s position). Under this view, the conclusion of the adoption process itself, rather than the terms of the adoption decree, determines when the adoption has occurred, and if the process concludes after a child’s sixteenth birthday, it is too late. Defs.’ Mot. at 16.
The court finds nothing in the statute itself that speaks to this question. A reasonable person could understand the phrase “adopted while under the age of sixteen years” to include all adoptions that are effective as of the child’s sixteenth birthday, in which case Taeyoung would qualify as a “child” under the INA. On the other hand, the Government’s assertion that the statute sets the date by which the adoption process must have concluded is by no means groundless. The failure by Congress to define “adoption” in the statute places this interesting but thorny issue before this court. See generally 8 U.S.C. § 1101 (definitions).
The structure of the statute is of some assistance.
Cf. Nat. Res. Defense Council, Inc. v. Nat’l Marine Fisheries Serv.,
Far from suggesting that this court should import subsection (c)’s “take place before” language into subsection (b), the differing statutory language in the subsections suggests that Congress intended the adoption dates to be treated differently. Congress could have written the two subsections to include identical wording, or could have indicated that the meaning of an adopted child under subsection (c) was to be understood by explicit reference to the earlier subsection. Congress did no suсh thing. Instead, in subsection (b), Congress required only that the child be adopted “while under the age of sixteen years,” making no reference to when adoption proceedings occur or take effect. The phrasing does not clearly indicate that Congress intended for § 1101(b)(1)(E) to permit or prohibit retroactive adoptions.
Because the term “adoption” in subsection (b) is ambiguous, the court must determine whether the BIA’s interpretation of the statute is reasonable.
E. Chevron Step Two.
As the Government correctly notes, the Administrative Procedure Act requires the court to defer to the BIA’s construction of immigration statutes unless the interpretation is “arbitrary and capricious, an abuse of discretion, or otherwise not in accоrdance with the law.” See 5 U.S.C. § 706(2)(A); Defs.’ Mot. at 10. Review under the arbitrary and capricious
*1277
standard must be “narrow,” but “searching and careful.”
Marsh v. Or. Nat. Res. Council,
The Supreme Court has explained that the agency’s action is arbitrary and capricious if “the agency has ... entirely failed to consider an important aspect of the problem.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
The Government asserts that, under the Supremacy Clause, the BIA was not bound to honor the nunc pro tunc order of the State of Hawaii court. Defs.’ Mot. at 27-30. Moreover, according to the Government, the legislative history of the INA demonstrates that Congress sought “to maintain its long-standing tradition of prohibiting the immigration of aliens who had been adopted as adults by U.S. citizens or legal permanent residents.” Id. at 17-18. The Government argues that Cariaga and Drigo, which rested on this rationale, were cogently reasoned and therefore binding on the court. Id. at 20-22. Finally, the Government argues that various BIA regulations make clear that the adoption must take place before the child attains sixteen years of age. 1 Id. at 15, 22-23. The court disagrees with the Government’s analysis.
Cariaga examined a decree of adoption issued by Iowa on October 30, 1975, but given effect “retroactive to April 8, 1963.” 15 I. & N. Dec. at 717. When the decree was entered, the beneficiary, born in Mexico, was nineteen years old, and the age limit for immediate relative status for adoptive children at that time was fourteen years old. See id. The beneficiary’s birth father had consented to the adoption on April 8, 1963, and the beneficiary had lived with his adoptive parents from the time that consent was given. Id. The BIA nevertheless denied Cariaga’s petition for immediate relative status. Id. at 716.
The BIA noted in Cariaga that immediate relative status was not originally made available to adoptive children at all because Congress “fear[ed] that fraudulent adoptions would provide a means of evading the quota restrictions.” Id. at 717 (citing S. Rept. 1515, 81st Cong., 2d Sess. *1278 468). In later amending the statute to permit immediate relative status for adoptive children, Congress imposed an age restriction because it wanted to “distinguish between bona fide adoptions, in which a child has been made a part of a family unit, and spurious adoptions,” which it said might involve the adoption of adults. 15 I. & N. Dec. at 717 & n. 1. The BIA concluded:
In light of the history behind the age restriction in section 101(b)(1)(E), it appears clear that the provision should be given a literal interpretation. The act of adoption must occur before the child attains the age of fourteen. Therefore, despite the retroaсtive effect given the beneficiary’s adoption by the Iowa Court, an adoptive relationship was not created within the meaning of the Immigration and Nationality Act, when the beneficiary was adopted under Iowa law at age nineteen.... The provisions of the Act do not permit recognition of this adoption for immigration purposes.
Id.
In its Cariaga decision, the BIA acknowledged that, in passing the INA of 1952, Congress “clearly indicate[d] that the Congress was concerned with the problem of keeping the families of immigrants united. As part of that policy, Congress provided liberal treatment of children.” Id. But the BIA then failed to address the substance of that policy at all in Cariaga. In other words, the BIA cited the congressional policy, then ignоred it.
In Drigo, the BIA denied immediate relative status to an adopted child born in Dominica, West Indies, again because the adoption decree was rendered after the child reached the age of fourteen. 18 I. & N. Dec. at 224-25. In that case, a territorial court in the Virgin Islands had entered the adoption decree on October 2, 1979, nunc pro tunc as of May 7, 1979. Id. at 224. May 7, 1979, was a date prior to the child’s fourteenth birthday. Id. Stating that “Congress!] intenfded] that the age restriction ... be construed strictly,” the BIA dismissed the appeal. Id. at 224-25. Drigo relied heavily on Cariaga. See id. at 224.
Here, similarly, the BIA confined its analysis solely to the premise that the age limitation should be construed strictly and to a single fact — that Taeyoung had passed the statutory age limit when the decree was entered. The court conсludes that this draconian approach, while simple to enforce, is unsupportable. Specifically, it is “contrary to clear congressional intent” and “frustrates the policy that Congress sought to implement.”
Coyt,
The first problem with the BIA’s policy of universally rejecting 1-130 petitions for retroactively adopted children is that it entirely ignores Congress’s stated purposes of promulgating an immigration policy that accords liberal treatment to children and strives to keep bona fide families together.
The second problem with its approach— amply demonstrated in this case — is that the BIA ignored the important fact that neither the state court nor the federal government perceived any hint of fraud in thе events that occurred here. The court concludes that the BIA’s decision must be reversed.
As the BIA recognized in
Cariaga,
maintenance of family unity and, in particular, the liberal treatment of children represent well-known goals of the INA.
See
H.R.Rep. No. 1365, 82d Cong., 2d Sess., 29 (1952),
reprinted in
1952 U.S.C.C.A.N. 1653, 1680 (statute implements “the underlying intention of our immigration laws regarding the preservation of the family unit”); H.R.Rep. No. 1199, 85th Cong., 1st
*1279
Sess., 7 (1957),
reprinted, in
1957 U.S.C.C.A.N. 2016, 2020 (“The legislative history of the Immigration and Nationality Act clearly indicates that the Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united.”);
Fiallo v. Bell,
As the Government notes, Congress did not intend to allow adults to seek entry as “adopted” persons under the Act. The original version of the Act did not provide for the definition of “child[ren]” eligible for immigration without quota to include adopted children. See INA of 1952, Pub.L. No. 82-414, § 101(a)(27)(A), 66 Stat. 163, 166. When the Act was amended in 1957 to include adopted persons in the definition of “child[ren]” classified as nonquota immigrants, the Act clarified that a qualifying “child” was one “adopted while under the age of fourteen years.” See Pub.L. No. 85-316, § 2, 71 Stat. 639, 639 (1957). In Cariaga, the BIA noted the statement of one of the amending bill’s sponsors, Representative Francis Walter, expressing concern about deliberate evasion of quota restrictions that would follow if Congress permitted “the preferential entry of adult aliens adopted long after they reach their majority.” See Cariaga, 15 I. & N. Dec. at 717 n. 1 (quoting 105 Cong. Rec. 4831, 11578-80 (Mar. 20, 1959)); see also Defs.’ Mot. at 19. Nevertheless, it is abundantly clear, and the Government does not seriously dispute, that adult adoptions were not Congress’s sole concern in fashioning a definition that gave adopted children immediate relative status.
Despite paying lip service to the multiple goals of family unity, the liberal treatment of children, and fraud,
Cariaga
evidences the BIA’s concern exclusively with the issue of fraud. By the time it decided
Drigo,
six years later, the BIA did not even mention family unity or the liberal treatment of children. Elevating fraud prevention to the sole cognizable purpose of the INA in each and every 1-130 petition presenting retroactive adoption decrees “entirely fail[s] to consider an important aspect of the problem.”
Motor Vehicle Mfrs. Ass’n,
Moreover, the BIA made no attempt to connect relevant facts to the decisions it rendered.
See Or. Nat. Res. Council,
*1280 The unpublished decision rendered here demonstrates the same unilateral approach to Taeyoung’s adoption. The US-CIS did not suggest, and the Government does not now argue, that Taeyoung’s adoption was “spurious.” The record demonstrates only that Taeyoung immigrated to the United States in 2003 and began living with Hong’s family upon arrival, that Hong sought to adopt him later that year, and that Hong did successfully adopt Taeyoung in January 2004. The only fault the Government identifies in Hong’s actions is the timing of Hong’s filing of her petition just three months before Taeyoung’s birthday. Defs.’ Mot. at 25. But the Government would be making the same statutory argument even if the adoption petition had been filed six or nine months before Taeyoung’s birthday but not signed by an overtaxed state court by the time of Taeyoung’s sixteenth birthday. The Government thus would make the viability of an 1-130 petition depend on a state court’s caseload.
Lacking a factual basis in this case for its concerns, the Government instead speculates about what “could” оccur. See, e.g., Defs.’ Reply at 10-11 (stating that petitioners could convince states to enter any date the petitioner wanted and thereby circumvent Congress’s concern with adult adoptions), 23 (suggesting that the BIA would face increased numbers of adult adoptions if it were required to honor retroactive adoption decrees). There is no evidence that any court would automatically let a petitioner pick any date he or she wanted as an adoption’s effective date. In the present case, that clearly would not happen. Hawaii Revised Statutes § 578-8 expressly permits a court to fix an adoption date different from the date the decree is entered, but specifies that the earliest effective date of the adoption may be the date the petition was filed, and the latest date may be six months after the decree is entered. Under section 578-8, therefore, Hong could not have sought to adopt an adult. If Taeyoung had been sixteen or older when the petition was filed, Hawaii Revised Statutes would not have permitted the court to issue an adoption decree that would have qualified under the Act.
More fundamentally, the BIA can address any fraud concern by inquiring as to what actually occurred. In
Kaho,
the BIA raised similar concerns with respect to Tongan “customary” adoptions, a practice by which a child may be adopted by being taken into a family and raised and maintained by the family as its own child, but without ever obtaining a court decree to that effect.
The USCIS can always consider evidence, if it exists, that an adoption decree’s effective date does not represent the actual date of the adoption. A state court’s determination that a particular date represents the date a child was adopted should be the starting point of the analysis. See Haw.Rev.Stat. § 578-8 (authorizing court to set date of adoption as early as the filing of the petition, and as late as six months after the date of the entry of the decree); CAR at 14 (Taeyoung’s adoption
*1281
order, declaring that, “[a]s of the date of this decree, the child is decreed to be the petitioners’ child”);
cf. In re Adoption of Sade,
At the hearing on the present motions, the Government additionally argued that considering the adoption date to be the date the decree was entered is reasonable because such a rule is easy to apply in a uniform manner. As the court pointed out at the hearing, Hong’s understanding of the statute would be equally easy to apply, as the USCIS would only need to read the effective date off of the adoption decree. But the court is not holding here that the Government must honor each and every decision entered by a state court. This court holds only that, given Congress’s stated purposes of liberal treatment of children and of keeping families together, the BIA’s failure to effectuate those policies in its reading of the statute, instead imposing an inflexible deadline based solely on the entry date of the adoption decree, is arbitrary and capricious. This case involves a valid adoption decree setting forth an effective date prior to Taeyoung’s sixteenth birthday, a decree the Government does not suggest was fraudulently obtained. The BIA should have honored the state court’s determination of the adoption’s effective date.
Finally, although such decisions do not bind this court, the court notes that its conclusion today is consistent with other district courts around the country that havе addressed this issue. Those courts have uniformly held that a BIA failure to honor an adoption decree’s effective date is error.
See Velazquez v. Holder,
No. C 09-01146 MEJ,
F. Legal Custody.
The Government argues in a single paragraph of its brief that it should alternatively be granted summary judgment because Hong failed to accumulate two years of legal custody before the 1-130 petition was submitted, as required for the granting of the petition. Defs.’ Mot. at 30 (citing 8 U.S.C. § 1101(b)(1)(E)). In support of this argument, the Government cites regulations stating that, “if custody was not granted prior to the adoption, the adoption decree shall be deemed to mark the commencement of legal custody.” 8 C.F.R. § 204.2(d)(vii)(A). The Government asserts that legal custody was not granted prior to the adoption and that the adoption decree’s date of January 27, 2004, was less than two years before Hong filed her 1-130 petition on December 6, 2005. Defs.’ Mot. at 30.
*1282 Hong argues that the Government may not rely on this argument because the BIA did not rely on this ground in denying Hong’s petition. Hong also argues that the court’s determination of the date of adoption is dispositive of the legal custody issue. Pl.’s Mot. at 30-31. That is, Hong says that, if the court accepts the retroactive adoption date of October 3, 2003, and if that adoption date marks the start of legal custody, then Hong had legal custody of Taeyoung for more than the required two years when the 1-130 petition was filed on December 6, 2005. The court agrees with both of Hong’s arguments.
First, the court сoncludes that the Government may not seek summary judgment on this legal custody ground. The Government’s argument appears to be another post-hoc rationalization for agency action. Neither the BIA nor the District Director relied on a perceived lack of sufficient legal custody.
See
CAR at 17, 22-23. As discussed above, the court does not consider post-hoc justifications on which the agency did not rely.
Motor Vehicle Mfrs. Ass%
Second, the Government’s sparse briefing of this issue cites nothing suggesting any legitimate challenge to legal custody. See Defs.’ Mot. at 30. The Government fails to carry its burden of showing an entitlement to summary judgment based on a lack of legal custody.
G. Scope of Remand.
Hong urges the court to remand this case to the BIA with instructions to grant Hong’s 1-130 petition. Citing
INS v. Ventura,
In
Ventura,
the BIA had recognized that changed country conditions constituted an open question, but, because it denied asylum to the respondent based on another ground, the BIA explicitly declined to address the issue.
See id.
at 15,
Moreover, in
Ventura
the Court emphasized that the record contained disputed facts regarding the issue of changed country conditions, and noted that country conditions had likely changed even further in the intervening time of the appeal.
Id.
at 17-18,
Lacking a basis in the record to suggest that legal custody remains a valid open question in this case, the court concludes that the burdens attendant on Hong and Taeyoung from relitigating this case weigh strongly in favor of granting Hong’s petition. In particular, the court is mindful of the difficulties associated with piecemeal litigation, multiple appeals, and the increased likelihood of lack of continuity if administrative or judicial factfinders change over the years. It is now February 2011, more than seven years since Taeyoung was adopted by Hong, and he is still waiting to be accorded immediate relative status.
V. CONCLUSION.
Because Taeyoung’s adoption date is October 6, 2003, Taeyoung was “adopted while under the age of 16.” The Government’s motion for summary judgment is DENIED. Hong’s motion for summary judgment is GRANTED. The court REMANDS the matter to the BIA for further proceedings consistent with this order. There being no basis for denying the 1-130 petition, it should be granted on remand.
IT IS SO ORDERED.
Notes
. The BIA never advanced a position regarding its regulations in the administrative appeal, nor did the District Director rely on BIA regulations as bases for denying the 1-130 petition. See CAR at 17, 22-23.
Cariaga
and
Drigo,
cited by the BIA, were similarly silent as to regulations. The court may not accept counsel's "post hoc rationalizations for agency action.”
Motor Vehicle Mfrs. Ass’n,